Memeorandum

July 02, 2012

Somebody Get Team Romney On Message

The Romney spokesflacks won't be helping out health care debate if they persist in raising my blood pressure:

A spokesman for Mitt Romney said the former Massachusetts governor agrees with President Obama that the individual mandate upheld by the Supreme Court last week is a penalty or a fine, rather than a tax.

In a roundabout exchange on MSNBC’s Daily Rundown on Monday, Eric Fehrnstrom was asked if he agrees with Obama that the individual mandate is not a tax.

“That’s correct,” Fehrnstrom said. “But the president also needs to be held accountable for his contradictory statements. He has described it variously as a penalty and as a tax. He needs to reconcile those two very different statements."

Ahhh!

A bit later, we get something like an explanation:

But the ruling and the conflicting statements highlights the trouble Romney has in going after the president on healthcare. As governor of Massachusetts, Romney instituted a healthcare law that includes an individual mandate, and at the time, he too portrayed it as a penalty or a fine, rather than a tax.

“The governor has consistently described the mandate in Massachusetts as a penalty,” Fehrnstrom said, but criticized the president for portraying the mandate in different ways depending on the politics of the situation.

Foir heaven's sake! We have a Federal government of Constitutionally enumerated powers and it is quite clear from the Tenth Amendment that powers not given to the Feds are reserved to the states or to the people. The point being, as governor of Massachusetts Romney was operating under different, and in some ways broader, power than the President of the United States. A state's "police powers" are described at the bottom of p. 7 here.

A state governor can impose a penalty for the failure to buy health insurance; people who don't like that can vote agaisnt the governor or leave the state. A similar penalty at the Federal level could not be justfied (per the new Roberts ruling) under the Commerce Clause.

Romney has a perfectly plausible limited government state's rights case to make here.

AND WHAT ABOUT THAT 'TAX' PENALTY, ANYWAY? Erik Jensen of Case Western is skeptical that just because something like a tax is associated with a law that Congress has the power to tax that activity:

If the penalty for failure to acquire suitable insurance will be a tax, then, it is argued, the requirement to acquire insurance, the mandate, will itself be a valid exercise of the taxing power. If that’s right, it certainly isn’t obviously so. Since almost everything the national government does is funded through taxation, that understanding would lead to a conception of congressional power that is effectively unlimited, and the Taxing Clause would trump almost all other grants of congressional power in Article I, section 8.

That theme is expounded in the paper:

Because almost everything the national government does is supported by taxation, with that understanding the Constitution would provide almost no limitations on congressional power. Moreover, the taxing clause would render almost all the rest of Article I, section 8 of the Constitution surplusage. Why were all those other powers enumerated if they are trumped by the taxing clause? Why should we care, for example, whether Congress is regulating commerce, if it’s using funds raised through taxation to do the regulating? Why did the founders specify the power ‘‘to raise and support Armies’’ if the taxing clause would have sufficed? The taxing clause by itself would make Congress nearly all-powerful.

UPDATE II: In longer interview excerpts released by the Romney campaign, the Republican candidate argues that there's a distinction between a state mandate and a federal mandate when it comes to taxation. The Supreme Court said the federal government can only impose a mandate as a tax, Romney argues, but that doesn't mean a state mandate has to be defined as a tax.

Comments

Yes, they should just say it's a state issue and any state can do whatever they want as long as no provisions violate the Constitution. If California wants to cover the cost of healthcare for all of their citizens then go for it. But don't expect the Feds to fire up the printing presses to pay for it. It does not matter what provisions of Obamacar/tax Romney wants to keep because its up to the states to decide what they want to do individually.

Romney's saving grace will be super pacs pounding Obama on taxing the middle class and his duplicitious way of passing Obamacare. Romney should just accept the court interpretation of the mandate as being a tax and in effect he did raise taxes in Massachusettes. However, Romneycare was passed with the consent of the people of Massachusettes. Obamacare was passed over the will of the American people and calling it a penalty was a way to deceive voters and allow skittish Democrats to vote for the legislation.

I suspect TeamMitt made the calculation that if the Mitt campaign emphasized the tax flavor of the exaction, the Obama campaign would turn around and ask Mitt why he wasn't including the Mass. exaction as a tax increase occurring during his time a MassGuv.

Attacking Obama on health care was never going to be easy for the Mittster. I don't think persuadable voters in battleground states are going to vote for Mitt instead of BarryO because Mitt's exaction, because done at the state level, respected federalism more than BarryO's exaction.

"I dont think persuadable voters in battleground states are are going to vote for Mitt instead of BarrO because Mitt's exaction, because done at state level, respected federalism more than BarrO's exaction"

A state governor can impose a penalty for the failure to buy health insurance

And a local government can impose one for the failure to mow one's lawn. The question is: Has the federal government, prior to now, had the power to fine a citizen for inaction - for the refusal to obey a direct order to do or buy something?

Calling it a tax just to make it easier to grant them that power doesn't change the fact that it's coercion, which is what I thought was the main point about the broccoli argument, not whether they could make you buy it as long as they didn't invoke the Commerce Clause.

An ABO vote is just that. The Goldilocks Optimum position for the issue is "I will sign the repeal of Obamatax upon its arrival in the Oval Office." Declamations upon Tenth Amendment rationales is going to lead to the observation the executive who signed Romneycare could not find sufficient support for reelection to even bother running.

I have no doubt whatsoever concerning President Romney reneging on his promise to sign the repeal. The same goes for Boehner and McConnell regarding passage. "Tear it out by its roots." doesn't have any wiggle room and McConnell did not flannel mouth his intention to repeal using reconciliation to obviate cloture.

If the reason why the 26 states brought the suit in the first place was because forcing them to expand their medicaid rolls was going to bust their budgets, and now the SC has given them a way out--will all 26 states follow Florida and Wisconsin's lead and take it? What happens if half the country opts out? Will broke deep blue states like California and Illinois be able to opt in, even if they want to? Probably not without raising state taxes to the back-breaking point.

If Romney doesn’t come out and say he is going to repeal this monstrosity in its entirety he will lose this election. If he's going to pooky, pooky, bambi, bambi us Independents then we stay home. There’s a reason why we’re Independents and it’s certainly not because we’re willing to move left. Quite the contrary but I don’t believe Mitt gets it.

"California and Illinois be able to opt in, even if they want to? Probably not without raising state taxes to the back-breaking point. "

Probably not. The states will go for the minimum Medicaid funding levels hoping to push people off to the state exchanges. Plus states already don't fund state workers health care plans beyond the current year, so all state workers will also be pushed off to the exchanges. The problem is the Obamatax is no where near enough to cover actual costs. Feds will end up picking up the health care costs.

Sorry, mikey. My sentence was admittedly unclear. I think I meant what I said, but let me try to clarify.

Take a persuadable voter in a battleground state. Let's assume that voter has heard that Mitt's exaction, whether or not one agrees with it, didn't hurt federalism because it was done at the state level. Let's assume that voter has also heard that BarryO's exaction, because done at the federal level, runs rampant over the states. I don't think my persuadable voter is going to be moved by that argument.

"Has the federal government, prior to now, had the power to fine a citizen for inaction - for the refusal to obey a direct order to do or buy something?"

In an indirect sense it has, but not nearly to such a sweeping extent. Every time they offer a tax credit for favored behavior, they are to a certain extent punishing, by taxation, all those who don't take part. To a lesser extent, the same applies to deductions.

Romney says he will repeal Obamacare. He says it loudly and clearly every chance he gets. You may choose not to believe him, of course, But he will definitely repeal it by signing something that could get through Congress.

If your goal is to repeal explain who else you are going to vote for to get this to happen?

This decision and its aftermath could also open a can of worms on unfunded mandates by the Feds. The Feds have been generous in passing along responsibilities, but not resources for quite a number of programs Many of these were put forth by the bureaucracy rather than through acts of Congress. Like covering Viagra under Medicare.

It would seem that limiting the Commerce Clause could be a vehicle for, God forbid, radical activist lawyers on the right.

But he will definitely repeal it by signing something that could get through Congress.

Therein lies the problem. I place a high probability on Republican congresscritters blowing this by doing some kind of partial repeal, keeping "good parts." There's nothing in Obamatax worth missing the opportunity to send the message of a complete repeal.

Following is the entire text of H. R. 2, which was introduced on January 5, 2011 and passed on January 19.

SECTION 1. SHORT TITLE.

This Act may be cited as the `Repealing the Job-Killing Health Care Law Act'.

SEC. 2. REPEAL OF THE JOB-KILLING HEALTH CARE LAW AND HEALTH CARE-RELATED PROVISIONS IN THE HEALTH CARE AND EDUCATION RECONCILIATION ACT OF 2010.

(a) Job-Killing Health Care Law- Effective as of the enactment of Public Law 111-148, such Act is repealed, and the provisions of law amended or repealed by such Act are restored or revived as if such Act had not been enacted.

(b) Health Care-Related Provisions in the Health Care and Education Reconciliation Act of 2010- Effective as of the enactment of the Health Care and Education Reconciliation Act of 2010 (Public Law 111-152), title I and subtitle B of title II of such Act are repealed, and the provisions of law amended or repealed by such title or subtitle, respectively, are restored or revived as if such title and subtitle had not been enacted.

Can anyone find any "save the good parts" language? My bet is the same language will appear in the bill to be introduced on July 9 and then again in January 2013.

Subsequent legislation may be introduced regarding popular items but it won't be in the repeal act.

Let's hope that the Repeal Act with that language gets sufficient votes when it counts. The murmurings about saving the good parts is coming from some GOP congressman. Time for a horse's head in the bed for those clowns.

Romney agrees with the Supreme Court dissenters who say the mandate is not a tax because at the federal level taxes must start in the House and be passed accordingly. I believe that is part of the written dissent. This bill was not. Since the only way the law stays constitutional is for it to be a tax, however, then the choices are, it is now a tax and Obama has raised your taxes, or it is not a tax and therefore is unconstitutional and worthy of repeal for that and a million other good reasons.

Mel, I suspect this is not an Eric F. running off at the mouth error. Team Mitt, I think, has vetted their response. The response may be the wrong approach, but, unlike, Etch-a-Sketch, it would have been a well thought out mistake.

In any event, I don't think it's a mistake. I think Romney gets the most persuadable voters in battleground states by supporting and promising to sign repeal of ObamaCare. Let his supporters and those PACs running ads on Mitt's behalf take up the tax mantle. Mitt himself should focus his remarks on fixing the bad eceonomy and repealing ObamaCare. Nothing Eric F. said undercuts that approach.

In this debate, let us not forget that Scotus ruled on the National Firearms Act in the thirties that a $200 'tax' on a $50 firearm was a 'revenue' measure, not a penalty or control measure. Just another of the many corruptions of our constitution that get-along compromisers have allowed to creep into our federal system.

mtmbiker - And in that case (Miller), SCOTUS ruled that a tax on firearms would be unconstitutional, in light of the 2nd amendment, if the firearm "has some reasonable relationship to the preservation or efficiency of a well regulated militia" or "is any part of the ordinary military equipment, or that its use could contribute to the common defense."

The case was remanded to the court below for a factual finding, whether or not a short barrel shotgun met any of the tests that SCOTUS stated.

Those fellows and gals you refer to as "get along compromisers" are just softer tyrants.

Is there any way to make a politically palatable counterargument that there's nothing wrong with outsourcing? The only real opponents would be unions, I would think. But in most cases outsourcing saves these companies from bankruptcy, and the outsourced jobs are likely low-paying and menial.

Even though the outsourcing happened after Romney left Bain, there's a part of me that would like to see him say, "Yeah, that's capitalism in action. We want a dynamic economy where we do the high-paying skilled jobs and outsource the stuff that we don't want to do here. What are you, some kind of socialist?"

And jimmyk misunderstands the argument. Outsourcing is the purchase of products that your firm does not produce to use by your firm. Off shoring is the act of moving jobs overseas that are part of your company's business model. The WaPo conflated the two and was given four Pinocchios for doing so. Arguing from the conflation is what the WaPo wants to force Romney to do.

Memo to Mittens: For future reference, the correct answer is ... Do you mean candidate Obama, who now says it's not a tax, or the administration of President Obama, which argued in court it was a tax the day after it argued it wasn't? Abbba dabbba dabbb, that's all folks!

geez, the silver lining was that Obama could be hammered as a bald liar, and now Romney people say he isn't?

I am thinking today that while the Democrats are outwardly rejoicing about their win, they are inwardly seething with rage about the decision, along the lines of the lefty dissents. Nevertheless, they know how to play their cards right, even if their cards are being extracted from up their shirt sleeves and the bottom of the deck.

And jimmyk misunderstands the argument. Outsourcing is the purchase of products that your firm does not produce to use by your firm. Off shoring is the act of moving jobs overseas that are part of your company's business model.

I have disagree with your definition of outsourcing. What firm doesn't purchase products from other firms? Outsourcing means eliminating in-house jobs in favor of purchasing goods or services externally. Offshoring is a special case: outsourcing to foreign firms.

So yes, it would have been clearer if I'd used the term "offshoring," but it doesn't change my point. Which was that ideally rather than try to cut fine distinctions between outsourcing and offshoring, one might defend capitalism and say there's nothing wrong with either.

Technically the Romney spokesperson saying it wasn't a tax per se may have a point or two because the four AG's on the weekend Huckabee show said there was a problem with what kind of tax it is, i.e.; excise, tariff, direct, etc.

Mittens isn't particularly liked by the majority of voters. His next "gambit" (probably) will be to pick Rubio. Because Florida is essential to his winning in November.

While over in Florida, the republican Rick Scott has approval ratings down in the toilet (31%).

Today, the governor of Florida said he won't participate in ObamaCare.

And, as in issue, you need to look around you. To see if there are lots of people up in arms about the Supreme Court's decision. (Because I live in California this is not present.)

There are seven key states needed for victory in November. Between them they contain 85 electoral votes. One of these seven is Florida. The other 6 are: Colorado, Iowa, Nevada, New Hampshire, Ohio and Virginia. (Ya just can't call them, yet.)

Will people want to know the nitty-gritty on how this decision came down the pike? Most people, I think, don't give two farts.

If Romney doesn’t come out and say he is going to repeal this monstrosity in its entirety he will lose this election.

How many times a day must he say this to satisfy you Tina? He already says it at every campaign stop, every interview and has for months. He has multiple ads saying the same thing. So do you have a suggestion on how he could say it more?

The only race I feel safe enough to predict is that Scott Brown will win out against the faux indian.

But the chinless wonder doesn't benefit by Scott Brown "occupying Ted Kennedy's" old senate chair. Because Harry Reid will be making offers to the more independent minded victors in November's senate races.

The chinless wonder in the senate. And, the over-tanned drunk guy in da' House ... are very poor examples of what the GOP provides in the way of charismatic leadership skills.

Sure, Harry Reid has no charisma, either. But he can handle the senate ... when the GOP made inroads above 50 seated members ... because? The senate is first and foremost a club.

There are more problems in getting voters out for Mitt than you can imagine! But you can imagine, at least, that Mitt so far, hasn't been "front running."

Picking Rubio for veep? Might not even be good enough to carry Florida.

And, yes. John Roberts pulled the ObamaCare "football" away. Who knew that was going to happen? How did the DC media keep this one a secret until the case came down the pike? (Was Leon Panetta hidden in the cellar for a month?) While most people don't care "how" it was done. Nor what the stakes were for the GOP.

But, Sara, Romney says he likes the coverage for pre existing conditions, doesn't he? To me it sounds as if he will not repeal the entire act--just keep parts he likes. Or do you think he will repeal and then propose a new health reform program?

Sailor: He will dump it lock, stock, and barrel. He has already said that they will develop something people can read and understand that does include some features no one has an objection to or that are popular and also include things that were left out of the ACA. However, health insurance isn't exactly his highest priority right now. He will concentrate on jobs, jobs, jobs, the economy, and jobs, jobs, jobs.

Sailor, as Rick B. pointed out, Romney doesn't get to decide (though he might influence the legislation). He just gets to sign or veto the bill that comes to his desk.

I would hope that if asked about whether there are parts of the bill he would keep, Romney's response would be, "The bill is like a house of cards. Removing one element brings the whole thing down. We have to repeal the whole thing and start from scratch."

Also, Mitt Romney believes that one of the reasons small business is not hiring now and that even larger corporations are staying on the sidelines is unease and the hammer the ACA puts on these employers. Since getting America back to work is priority one with Mitt, he will act accordingly. I think that Mitt likes portability, which by its nature would have to cover pre-existing conditions, I think if he includes it in his plan it will be to enhance portability.

Exactly, jimmyk. And, Sara, I know Romney wants to concentrate on the economy and jobs, jobs, but I think he also needs to talk about the ObamaCare debacle. The polls are now showing that 1/2 of the US approves of the passage.

This is all quite simple messaging-- the biggest issues for indy voters are unemployment/wage stagnation, food/fuel inflation, government spending-the debt-- attacking Obamacare as a TAX covers 2 out of those 3 issues. Obamacare is a huge tax and spend deal that kills jobs growth, and adds to the debt. Just hammer away at those 2 points-- it's a huge tax increase on workers, a jobs killer and a debt bomb. As Meatloaf sang-- 2 outta 3 ain't bad. Just stick with that messaging.

Hey Team Mitt veterans. Butting heads with Billy Bulger in Mass. will have been child's play compared to what you will be facing with the Jarrett Gang. I think you're up to it, but you might want to review the first Holyfield-Tyson fight tape to refresh yourself on dealing with a bully.

That may or may not be classified as a good comment by various folks. There are signs Team Mitt understands that what it will be dealing with. If not, prepare for a second Roberts-Obama swearing in tango.

jimmyk, Kevin Willamson had a dynamite post defending just that aspect of capitalism, and suggesting rhetorical avenues to use with weepy muddle types - that offshoring makes goods and services cheaper for everybody, that offshoring helps the developing world develop, that...well, I'll just quote Williamson:What’s interesting about this controversy to me is the naked xenophobia of the Left on display alongside the amusing ignorance. Liberals love a good talk about the value of learning from other cultures and other peoples, so long as those foreigners don’t mind staying poor. If they want to sell goods and services, they are the enemy. Asians are allowed to be airy gurus and quaint villagers, but the day one of them wants to set up a factory, Democrats have a fit. Mohandas Gandhi good, Ratan Tata evil. You want collective, coordinated global cooperation to solve the world’s most pressing problems? That doesn’t look like a working-group meeting at the United Nations; it looks like what Bain does. You want a display of backward, ignorant chauvinism? Put Obama in front of a union hall.

the story on Drudge, from the Daily Beast, about his taped campaign call from Air Force one, is embarassing for him in more ways that one. how will he guard all his conservations from the flies on the wall?

NK, I would prefer Mittster stick with the general themes, and Sheldon Adelson's spare change fund the attack ads that mention tax. I don't think Romney himself is helped by getting into the it's a tax/it's a penalty/it's a whatever issue. I think the level at which Romney should operate is the it's an outrage level.

now that is a BIG victory for Team Romney. they didn't just ignore the crap the WaPo wrote, they forced a correction. That is an encouraging sign that they are not going to let lies about them stand, but are going to fight them.

I don't see the benefit of defending Bain/Romney except through attack. How many Finnish jobs did BOzo create with the $529 million Fisker loan? How many Chinese jobs were created by BOzo with his billions spent in solar subsidy nonsense?

BOzo has created more jobs for foreigners than any human being in history.

It's OK to mention that Bain offshoring is an outright lie after making those points but the breath you waste defending Bain is better used attacking BOzo. The election is not about what a swell guy Governor Romney is. His appeal is that he is more competent than El JEF.

Reince Priebus on Dennis Miller answering some very pertinent questions about Romney from Dennis.

Dennis is obviously bummed and Priebus notes it. Priebus basically saying that we have to push forward. Basically he does not like the decision but isn't dwelling on it.

Priebus just said he hates the decision but it sure has mobilized his base. Sez the money and the calls are coming in like crazy.

Dennis mentions how we on the Right stray and the left never does, and he wishes Romney had not undercut himself by having done MassCare.---Priebus deals with that as well as he can and sez you just have to stress the differences between Mitt the man and Obama the man.

Priebus Sez he thinks Obama is vulnerable because he is a promise breaker and not a genuine honest guy and he thinks that will be telling.

Dennis replies next time Romney gets on stage with Governor Walker of Wisconsin and Paul Ryan, quit giving them polite lip service and instead give Walker a real standing ovation of honor for what Walker and Ryan did for all of us in Wisconsin. This is a point Dennis has been angry and depressed about all morning---the lack of cheering and lauding by Romney of the great victory Scot Walker won for us.

Priebus sez "Point taken Dennis," in a manner that makes me think it will reach Romney's ear.

The entire welfare state depended on upholding PPACA. I suspect the CJ feared striking the entire act would lead to series of challenges to the New Deal and Great Society entitlement programs. So he wrote a flimsy opinion and dumped the problem back to the politicians who created it.

If the SC is so deferential to congressional legislation as to have an unwritten rule requiring them to find a way to support such legislation if even the feeblest argument can be put forward to allow them to do so, then the next Congress should have its first order of business already nailed down:

"Taxes may only be levied on the citizens as a means for funding government operations. No tax shall be levied in order to compel citizens to act in a specific way, such as to buy a favored product. Coercive taxation of any form shall henceforth be prohibited."

Why is the Democratic record so consistent while the Republican record is so mixed? For one thing, the whole legal and political culture pushes the court to the left. Conservatives are pariahs if they vote against the left on certain issues. But if they cross over vote with the left, they are hailed as statesmen. Just look the pre-emptive attacks on the Roberts Court when everyone thought it was about to strike down Obamacare — and contrast that with all the accolades Roberts is now receiving from his erstwhile critics. Before the decision he was threatening to plunge the nation into a political crisis. Today he is praised for his “humility,” “restraint,” being “brave” and “judicial modesty.” Meanwhile, many conservatives are twisting themselves in knots to defend or explain his vote. Not a chance the left would do the same if one of the court’s liberals had voted to overturn Obamacare. There is no penalty for voting left, but there is for voting right.

Thanks to daddy I end up listening to Dennis Miller's first hour on an amazingly high wattage station where the last 2 hours of Laura Ingraham resides, at least for now. After that hour my favorite gun-slinging lesbian doll baby takes over. Dennis has had Reince on before and they seem to have a good rapport.

narc, the station I was talking about really has a strange checkerboard of lots of people I don't know anything about with everything getting recycled at various dribs and drabs through the day. Laura and Dennis are their only A listers afaict. It's probably low wattage too but happens to be located closer to me than Laura's most recent across-town powered by starving hamsters dynamo.

I know that's the Romney party line, but I've still seen no evidence yet to contradict it. Not even from David Corn. Unless that changes, February 1999 remains important. And Stericycle remains out of bounds.